§ 78.20Appeal of decision of Administrator or proposed decision to the Environmental Appeals Board.

(a) Within 30 days after the issuance of a proposed decision by a Presiding Officer under this part, any party may appeal any matter set forth in the proposed decision, or any other order or ruling made during the proceeding to which the party objected during the proceeding before the Presiding Officer, by filing an objection with the Environmental Appeals Board. On appeal of an order, ruling, or proposed decision of a Presiding Officer:

(1) The party filing the objection shall have the burden of going forward to show that the order, ruling, or proposed decision is based on a finding of fact or conclusion of law that is clearly erroneous; or a policy determination or exercise of discretion that is arbitrary and capricious or otherwise warrants review; and

(2) The petitioner or the owners and operators shall have the burden of persuasion, as set forth in § 78.12(a) (1) and (2) of this part.

(b) Within 45 days (or other shorter, reasonable period established by the Environmental Appeals Board) after issuance of a proposed decision of a Presiding Officer, the Environmental Appeals Board may issue sua sponte in its discretion a notice of intent to review such proposed decision. The Environmental Appeals Board will serve such notice upon all parties to the proceeding.

(c) Within a reasonable time following the filing of a petition for administrative review of a decision of the Administrator under § 78.3 of this part, or, if any issues raised by such petition are referred to the Presiding Officer, the filing of objections under paragraph (a) of this section or the issuance of a notice of intent to review under paragraph (b) of this section, the Environmental Appeals Board will issue an order affirming, reversing, modifying, or remanding the decision or proposed decision, as appropriate. Prior to issuing this order, the Environmental Appeals Board may provide an opportunity for parties to file additional briefs.

(d) If the Environmental Appeals Board issues an order affirming, reversing, or modifying the decision of the Administrator, then the decision as supplemented or changed by the order, shall be final agency action.

(e) If the Environmental Appeals Board issues an order affirming, reversing, or modifying the proposed decision, the proposed decision, as supplemented or changed by the order, shall be final agency action.

(f) If the Environmental Appeals Board issues an order remanding the proceeding, then final agency action occurs upon completion of the remanded proceeding, including any appeals to the Environmental Appeals Board in the remanded proceeding.